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In re Dependency of J.C.

October 10, 1996

IN RE THE DEPENDENCY OF J.C., J.C., J.C., AND J.C. K.C., RESPONDENT,
v.
DEPARTMENT OF SOCIAL AND HEALTH SERVICES, PETITIONER.



Appeal from Superior Court, Yakima County; 93-7-00154-9. Honorable Lani-Kai Swanhart, Judge.

As Corrected November 27, 1996.

Authored by Gerry L. Alexander. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Philip A. Talmadge, Richard B. Sanders.

The opinion of the court was delivered by: Alexander

En Banc

Alexander, J. -- The Department of Social and Health Services of the State of Washington (DSHS ) seeks to overturn a decision of the Court of Appeals in which that court reversed orders of the Yakima County Juvenile Court terminating K.C.'s parental rights to her four children. The Court of Appeals determined that the orders terminating K.C.'s parental rights were not supported by the juvenile court's findings of fact. Specifically, the Court of Appeals reached this Conclusion because there was no finding by the juvenile court that, at the time of the termination hearing, K.C. was continuing to use controlled substances so as to render her incapable of caring for the children. For the reasons discussed below, we conclude that the Court of Appeals's determination was incorrect and, therefore, reverse the Court of Appeals and reinstate the juvenile court's order.

K.C., who was 26 years of age when these proceedings began, is the mother of four children. *fn1 The oldest child, a boy, was then 9. The other three children are girls, then aged 8, 5, and 4. In November 1991, DSHS removed all four children from K.C.'s care and custody and placed them in foster homes. Shortly thereafter, DSHS filed petitions in Yakima County Juvenile Court, seeking an order of dependency as to each child. *fn2

Following a hearing, the juvenile court found that the facts alleged in the dependency petitions were established by a preponderance of the evidence. *fn3 Consequently, it concluded that the children were "dependent," as provided in RCW 13.34.030, in that they had been "abused or neglected as defined in Chapter 26.44 RCW," and it entered an order of dependency relating to each child. Exs. 5, 7, 9, 11 at 2. *fn4 DSHS staff then developed a "service plan," designed to help K.C. address her parental deficiencies. *fn5 The plan specified that K.C. participate in a variety of substance abuse treatment programs, and avail herself of certain family counseling, anger management, and mental health services.

Approximately 18 months after the service plan was initially developed, DSHS filed petitions in Yakima County Juvenile Court seeking termination of K.C.'s parental rights to the four children. It contended that K.C. had made little or no progress toward resolving her parental deficiencies and that her participation in the service plan had been poor.

K.C. testified at the termination hearing, and admitted to having abused alcohol and drugs in the past. *fn6 She stated, however, that she did not have an alcohol or drug problem "anymore" because she was "taking care of the problems." Report of Proceedings (RP ) at 13. She conceded, however, that her current boyfriend, Manuel V., is undergoing anger management training and receiving treatment for substance abuse as conditions of his probation for assaulting K.C. K.C. also admitted that while she was enrolled in an anger management course, she struck her seven-year-old nephew, and, as a consequence, was convicted of assault in the fourth degree. Lastly, K.C. said that her supervised visits with her children were "happy" times for her and the children. RP at 14.

K.C.'s assessment of her visits with her children was contradicted by the testimony of the DSHS caseworker who had been assigned to supervise K.C. The caseworker reported that during those visits K.C. would threaten the children that "if they didn't behave, she was going to go out and get drunk or go out and get high." RP at 79. The caseworker opined that such comments "contributed to the children being very upset after visits." RP 79. She also testified that although K.C. had completed in-patient drug and alcohol treatment shortly after the children had been found to be dependent, K.C. had not followed through on any of the programs designed to help her maintain sobriety. She also recounted K.C.'s sporadic attendance at parental skills classes and family counseling sessions that were part of the service plan.

The caseworker indicated, additionally, that K.C.'s "home environment," including her personal relationships with men, continued to be an impediment to her "remaining clean and sober," as well as her ability to provide a safe and stable home for the children. RP at 71. The caseworker said that at the time the children were removed from K.C.'s care, K.C.'s boyfriend, Gilbert C., as well as her current boyfriend, Manuel V., had been physically abusive to K.C. The caseworker explained further that, against the advice and direction of DSHS caseworkers, K.C. included Gilbert C. in at least two of the family counseling sessions that were called for in the service plan. Finally, the caseworker said that K.C. persists in telling her children that Gilbert C. is the father of her youngest child, despite having been told by DSHS that "blood tests taken by the county prosecutor have excluded him as the father." RP at 33; See Exs. 1, 2.

The juvenile court granted the relief sought by DSHS, concluding that all of the allegations required by RCW 13.34.180 had been shown by clear, cogent, and convincing evidence, and that termination of the parent-child relationships would be in the best interests of the children. *fn7 Clerk's Papers (CP ) at 7. In her oral ruling, the juvenile court Judge said that K.C. had "not changed one iota since this case [began] " and that an incident where she "physically abused a child while being involved in anger management . . . convinced [the court] that [K.C. has] no, absolutely no capability of providing basic parenting." RP at 91. Among its written findings of fact, the juvenile court found that K.C. "[lacks] the ability to provide for the [children's] basic needs," and that she "has not complied with aftercare recommendations made by drug and alcohol treatment providers and required by the service plan." CP at 5.

K.C. appealed the decision of the juvenile court to the Court of Appeals, Division Three. She assigned error there to certain of the juvenile court's findings of fact and Conclusions of law, to wit that: "all services . . . capable of correcting [K.C.'s] parental deficiencies within the foreseeable future had been offered or provided;" "there is little likelihood that conditions will be remedied so that the children can be returned to [K.C.] in the near future," CP at 5, 13; "continuation of the parent-child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home," CP at 6, 13; and "it is in the best interest of the children that the parent-child relationship be terminated." CP at 7; see also CP at 6.

K.C.'s argument at the Court of Appeals focused, primarily, on what she maintained was DSHS's failure to prove her current lack of sobriety. She contended that because, at the dependency hearing, DSHS had identified lack of sobriety as one of her parental deficiencies, but had not offered any evidence at the termination hearing that she was currently abusing alcohol or drugs, and because the juvenile court had made no finding in that regard, it was error for the juvenile court to conclude that she was an unfit parent. DSHS responded that it was not required to prove present use of drugs ...


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